Eshelman v. Messer Construction Co.

Filing 10

REPORT AND RECOMMENDATIONS re 8 MOTION to Dismiss for Failure to Prosecute filed by Messer Construction Co. IT IS THEREFORE RECOMMENDED THAT:1. Defendants Motion to Dismiss for Failure to Prosecute (Doc. # 8 ) be granted and Plaintif fs Complaint be dismissed without prejudice; and 2. The case be terminated on the Courts docket. Objections to R&R due by 6/2/2017. Signed by Magistrate Judge Sharon L. Ovington on 5/19/17. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DONNIE D. ESHELMAN,
Plaintiff,
vs.
MESSER CONSTRUCTION CO.,
Defendant.

: Case No. 3:16-cv-00345
:
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
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:
:
:
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REPORT AND RECOMMENDATIONS1
Plaintiff Donnie D. Eshelman, a resident of Dayton, Ohio, brings this case pro se
against his former employer Defendant Messer Construction Co. Eshelman states in his
Complaint that he has been diagnosed with polycystic kidney disease (PKD). He asserts
that Defendant terminated his employment and failed to reasonably accommodate his
disability (PKD) in violation of the Americans with Disabilities Act of 1990 and Ohio
law.
The case is present before the Court upon Defendant’s Motion to Dismiss for
Failure to Prosecute. (Doc. #8). On April 24, 2017, the Court issued a Notice to
Eshelman informing him that his response to Defendant’s Motion to Dismiss was due by
May 15, 2017 and warning him that if he failed to file a timely response, Defendant’s

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Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

Motion may be granted and his case dismissed. (Doc. #9). Plaintiff has neither opposed
nor responded to Defendant’s Motion to Dismiss.
Other than filing his Complaint and participating in preparation of the parties’
Rule 26(f) Report, Eshelman has not prosecuted his case. His inactivity means he has not
participated in discovery and leaves the record void of any explanation for this.
Additionally, his silence in response to Plaintiff’s Motion to Dismiss leaves the record
void of any explanation for his noncompliance with the Court’s Preliminary Pretrial
Conference Order. And, he has not taken any action in this case since participating in the
preparation of the parties’ Rule 26(f) report in October 2016. Discovery in this case
closed on April 20, 2017. (Doc. #6).
“If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b).
District courts, moreover, have the inherent power to dismiss civil actions for want of
prosecution to “manage their own affairs so as to achieve the orderly and expeditious
disposition of cases. Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962). In light of the
above-described circumstances, and including the prior Notice to Plaintiff that his case
may be dismissed if he did not respond to Defendant’s Motion to Dismiss, dismissal of
this case is warranted due to Plaintiff’s failure to prosecute. See id.; see also Fed. R. Civ.
P. 41(b).
IT IS THEREFORE RECOMMENDED THAT:
1.

Defendant’s Motion to Dismiss for Failure to Prosecute (Doc. #8) be granted
and Plaintiff’s Complaint be dismissed without prejudice; and
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2.

The case be terminated on the Court’s docket.

May 19, 2017

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this
period is extended to SEVENTEEN days because this Report is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections
shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is
based in whole or in part upon matters occurring of record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the record, or such portions of it as all
parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs. A party may respond to another party=s objections within
FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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